Lafayette School District says 14-year-old child abuse victim may bear some responsibility

The same boilerplate legal language that claimed a child victim of sex abuse may bear some responsibility for her abuse at the hands of a former Moraga middle schoolteacher is part of a Lafayette schools case involving the sexual abuse of a 14-year-old girl.

Louis Leone, the attorney representing the Lafayette School District in that case, claimed “Jane Doe” — who sued the district, Superintendent Fred Brill, Stanley Principal David Schrag and former teacher Michael Merrick earlier this year — “was herself careless and negligent in and about the matters alleged in the complaint, and that said carelessness and negligence on (Jane Doe’s) part proximately contributed to the happenings of the incident and to the injuries, loss and damages.”

Jane Doe’s attorney is livid.

“It is grossly insensitive to impute any degree of responsibility to a child, particularly with respect to matters of sexual abuse and exploitation,” Rick Madsen said Friday.

Leone said the language was needed at the start of a civil case with significant financial ramifications for the school district, and that “all possible affirmative defenses” must be raised or they risk waiving that option.

The Moraga School District superintendent echoed that sentiment Friday, saying in a news release that a lawsuit against his district could cost “millions” and that the defense mentioned in this newspaper’s article was only one of nine potential defense areas and that the news media “overexaggerated its importance.”

A UC Berkeley tort law expert said while such a defense can be used, to include it in a case involving a child is “implausible” and a tactic that could backfire. Many Lamorinda residents railed against the legal tactic Friday, including some in online comments to local media.

In the Lafayette case, Jane Doe sued the Lafayette School District and the other defendants in March, claiming district officials knew Merrick had fondled other students in the past and that nothing was done. Merrick, 49, pleaded guilty in January to sexually abusing Jane Doe in his classroom over a four-month period in 2010.

The Lafayette lawsuit seeks medical expenses, a punitive award and general damages.

To say Jane Doe may be partly responsible for what happened has added to her trauma, Madsen said. Leone, the Lafayette district’s attorney, said such a filing is standard legal practice.

“The answer was filed many months ago and was not raised by the district to cause any further distress to Jane Doe or to her family,” Leone said. “In fact, the district has not received any concerns from Jane Doe’s attorney regarding the answer.”

This potential defense may well be abandoned as the case moves forward and as more facts are revealed, Leone said.

Stephen Sugarman, a UC Berkeley law professor who teaches tort law, said such a line of defense “seems entirely implausible.”

“Indeed, if the district sticks to this sort of hardball tactic it could well backfire and increase both the likelihood of the defendants being found liable and the amount of damages awarded against them,” Sugarman said, adding that it also could taint the district’s reputation in the community.

“Think about how today’s families will feel if this is how they think school officials are going to respond were one of their children abused by school employees,” he said.

Moraga School District trustees met in a closed session special meeting called Friday morning to discuss the Kristen Cunnane case, less than 24 hours after this newspaper’s latest story about her case from the 1990s appeared online. Moraga Superintendent Bruce Burns, who said no action was taken at that meeting, released a statement late Friday afternoon.

“We certainly empathize with Ms. Cunnane and did not intend to cause her further distress,” according to the statement. “However, this is a significant case that could have serious consequences for our school district. She is demanding several million dollars in damages.”

Burns said the district raised nine possible arguments that might be used in court, and that the media have seized on only one, and “overexaggerated its importance.”

No dollar amount is listed in Cunnane’s lawsuit, which seeks unspecified damages.

“I haven’t demanded any amount of money since filing the lawsuit,” said Cunnane, now 30 and an assistant coach with Cal women’s swim team. “I think it’s for a jury to decide.

“It’s really hard to hear that they think I’m seizing and overexaggerating the importance. They don’t know how hard it is to be me and how hard I cried when I originally read it.”

The Moraga district two weeks ago received claims from two other Jane Does asking for more than $15 million each, alleging they were molested by a teacher.

Moraga schools are covered by liability insurance, which is paying for their attorneys and would cover potential monetary awards, Burns said.